Protection of Cultural Property Under International Humanitarian Law: Some Emerging Trends

Protection Of Cultural Property Under International Humanitarian Law: Some Emerging Trends P. ISHWARA BHAT[*] 1. INTRODUCTION Cultures use properties as the media of expression[1] and blossom them into proud cultural property of the community. The creative human genius, in the process, flowers into arts, architecture, sculpture, monument, painting, literature and other innumerable forms of aesthetic manifestations. Transcending the geopolitical boundaries, they constitute cultural heritage of the mankind irrespective of the point whether they are products of individual talent or of group effort.[2] From the perspective of specific culture, the cultural property that it produces is an overt mark of its identity,[3] a repository of cultural and traditional informations,[4] and an essential thing for cultural group’s self understanding.[5] Being visible symbols of culture and creativity,[6] great pieces of art are irreplaceable things,[7] as they attempt to grasp eternity by their beauty and grace. It is the mankind’s sad experience that armed conflicts result in intentional or unintentional devastation of cultural property. While earlier wars witnessed deliberate destruction of enemy’s cultural property as a measure of annihilation of enemy’s power,[8] modern armed conflicts with their more destructive mechanisms inflict extensive loss to cultural property. Such destructions and their cultural function, offend inter-generation equity, and impoverish the world’s intellectual and artistic attainment. The anger that suppression of culture breeds in the context of armed conflicts, in fact, feeds the subsequent generation’s motives for retaliation. As Etienne Clement observes. “[loss] of, or damage to, treasured structures cause despair and feelings of overwhelming suffering to the inhabitants of the affected area; it also makes the rehabilitation of their community much more difficult when the conflict is over”.[9] Extensive damage to Iraq’s antiquities during gulf war (1991), massive ‘cultural genocide’ in the former Yugoslavia involving destruction of Sarajevo’s numerous churches, mosques and libraries - many of which were built in the 14th and 15th century - and destruction of sixty three percent of Croatia’s Dubrovnik, the most outstanding historic town of Europe with 460 monuments (1992-93) are some of the recent examples of cultural destruction.[10] The latest addition to the unfortunate list of destructions is the destruction of the colossal images of Buddha at Bamiyan of Afghanistan during February and March 2001. This occurred in a non-international conflict as a measure of fanatic subjugation and as a means of drawing the attention of the international community for recognition and economic assistance. International community has responded from time to time for enhancing the extent of protection of cultural property. From the Leiber Code to the Second Protocol (1999), to the provisions of the Hague Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict, (hereinafter referred to as the Hague Convention) the norms and measures of protection to cultural property got crystallised, stabilised and developed. The objective of the present paper is to comprehend the broad direction of the development and to evaluate the efficacy of the cultural heritage law in times of crisis. It views that the approach of multiculturalism, the enchancement of protective measures and standards, down-playing the factor of military necessity, criminalisation of the wrongs against cultural property and more clear extension of legal norms to protect cultural property during internal conflicts are the major trends in cultural property law under International Humanitarian Law (hereinafter referred to as IHL) in recent times. It argues that while these are welcome trends, more serious and intensive application of these legal norms and adequate preparation towards these objectives during the time of peace are required; and that, this ought to be done by international cooperation and administrative actions, by effective incorporation of these values into the municipal legal system and by building a broad based public opinion in support of cultural property. 2. A HISTORICAL OVERVIEW According to Agnipurana the concept of just war ordained the parties to leave the temples and other places of worship as well as the fruit and flower garden unmolested.[11] Manu holds that the victorious king should worship in the temples, honour the priests and proclaim peoples’ safety in the conquered country.[12] Koran prohibits fighting in sacred places like mosques.[13] St. Augustine preached in ‘Truce of God’ (989 AD) against looting and desecration of places of worship.[14] The edict of Frederick I (1158 AD) prohibited plundering during war.[15] Inspite of abundant principles of humanism in religion and morality, wars were fought in the past with ruthless savagery. The fall of Carthage, Alexandria, Constantinople, Samarquand and Vijayanagar hugely imperilled culture. In ancient Greece and Rome wars were aimed at complete annihilation of the enemy and enrichment of the victorious.[16] Historian Polybius contracts Alexander’s policy of respect for sacred places during war to Philip’s wicked acts of plundering, and views that although destruction of fort and resources of enemy may weaken the enemy and enhance one’s position, no advantage could be derived from wanton destruction of temples and statues.[17] False belief about deities’ involvement in war motivated destructions during Roman wars.[18] Looting was the standard procedure during those days.[19] However, condemning the plundering of artistic treasure, Cicero pleaded that war should spare private and public buildings, sacred and secular, and all works created for adornment or dedicated to religion.[20] In the early Middle Ages when the Goth ruler Totila laid siege on Rome and was about to set fire, Belisarius, one of the Generals of Justinian wrote to Totila, ‘[b]uilding works of art in a city can only be the undertaking of wise men who know how to live with civility; whereas destroying existing ones can only be the work of lunatics who are not ashamed of going down in history as such ... If you win this war, by destroying Rome, you will not have destroyed some one’s property, but your own, whereas if you preserve it, you will logically acquire the most precious of all artistic heritage”.[21] The advice was respected and Rome was saved from destruction (546 A.D.) Contrasted with this are the destruction of old Greek libraries in Alexandria (642 A.D.) which treasured the literature of centuries[22] and the outrageous sack and plundering of Constantinople during the Fourth Crusade. W.N. Weech describes the battle thus : “the palaces were burnt. The accumulated treasures of antiquity were recklessly looted and destroyed. The richest monuments went into the melting pot for the value of their metal .. The libraries containing the assembled literature of the classical and early Christina ages, went up in flames”.[23] Similarly, Chengiz Khan’s destruction of Samarquand made to disappear the arts and crafts that had flourished in Central Asia for hundreds of years.[24] The splendid city of Vijayanagar was rendered to ruins after its defeat (1565 A.D.). In this context, Jawaharlal Nehru observed: “All the beautiful buildings and temples and palaces were destroyed. The exquisite carvings and sculptures were smashed, and huge bonfires were lit to burn up everything that could be burnt”.[25] Medieval India witnessed large scale destruction and plundering of places of worship during war.[26] Deviating from the above savage practices, humanity began to evolve a finer principle that works of art and places of worship shall not be destroyed. Vattel (1714-1767), a pioneer international law jurist, stated that whatever the reasons for ravaging a country, buildings and works outstanding for their beauty must be spared, since they were a credit to making and in no way contributed to strengthening the enemy; that nothing could be gained by destroying them, and blithely to deprive oneself of these works of art was tantamount to declaring oneself an enemy of mankind.27 This ideal did not remain merely as a theoretical one.[28] The Leiber Code of 1863 instructed that the property belonging to churches, establishments of education, and museums of the fine arts shall be considered as public property and hence immune from appropriation by the victorious army[29] (Art. 34). Classical works of art, libraries, scientific collections and precious instruments shall be protected against avoidable injuries (Art. 35). Bluntschli, commenting on the code, views that it is the duty of the enemy chief to prevent the pointless destruction of noblest products of the human spirit.[30] Henry Dunant, the initiator and one of the founders of the Red Cross, warned the future generations against outdoing each other in destroying the most beautiful masterpieces of which civilisation is proud: palaces, castles, ports, docks, bridges, buildings and monuments of all kind.[31] Following the Leiber Code, the English, Italian, Spanish, German and Japanese codes stipulated that moveable and immovable properties dedicated to science or art, churches, museums, libraries, collections of art and archives shall be treated as private property and be spread from bombardment.[32] The Brussels Declaration of 1874 not only reiterated these principles but also imposed a duty on the besieged to indicate the presence of such buildings by distinctive and visible

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